Postenschacher Trial: Wöginger to Face Court Again, Appeals to Constitutional Court
August Wöginger, along with two financial officials, will once again face trial in the “Postenschacher Affair” starting today. The ÖVP club chairman is accused of inciting abuse of office; he has pleaded “not guilty” and is placing his hopes in the Constitutional Court (VfGH).
Three defendants, eleven days of hearings, and 31 witnesses are scheduled for the proceedings in courtroom 61 of the Linz Regional Court. The diversion agreement Wöginger initially received in October regarding the case surrounding the Braunau-Ried-Schärding tax office has been overturned. While Judge Melanie Halbig had granted him a diversion with the consent of chief prosecutors Roland Koch and Georg Kasinger, the Vienna Public Prosecutor’s Office successfully appealed the decision.
The case was then transferred to the Linz Higher Regional Court (OLG), which ruled that Wöginger was not eligible for diversion and that the proceedings must be re-heard, beginning today at 9:30 AM.
What is Wöginger Accused Of?
The Economic and Corruption Public Prosecutor’s Office (WKStA) accuses Wöginger of inciting abuse of office. Specifically, he allegedly intervened in 2017 on behalf of a party friend who was applying for the position of head of the Braunau-Ried-Schärding tax office. The applicant, a mayor, reportedly raised the issue with Wöginger during a public consultation. Wöginger then contacted Thomas Schmid, then Secretary-General of the Ministry of Finance. Schmid, who later became sole director of the state holding company Öbag and is now a key witness for the WKStA, is suspected of intervening with a union representative on the commission responsible for selecting the candidate – ultimately securing the position for Wöginger’s preferred applicant.
Christa Scharf, a more qualified candidate, was unsuccessful and subsequently filed a complaint. In 2017, the Federal Equal Treatment Commission determined that Scharf had been hindered in her professional advancement due to her “beliefs.” In 2021, the Federal Administrative Court also found that Scharf had been overlooked and awarded her damages of 5,000 euros, as well as approximately 10,000 euros in lost wages, as she was not appointed head of the tax office.
Are There Other Defendants?
Yes. In addition to Wöginger, Siegfried M., the suspended head of the Austrian Financial Administration, and Herbert B., a high-ranking union official, must also answer to the court. M. And B., who selected the candidate recommended by Wöginger on the application commission, are also accused of making false statements. The presumption of innocence applies to all three defendants.
Why is the Case Being Re-Tried?
During the first day of hearings in October, the two co-defendants, Siegfried M. And Herbert B., submitted a written “assumption of responsibility” to the court, stating they regretted their actions and pledged to refrain from such behavior in the future. Wöginger’s lawyer, Michael Rohregger, then announced that his client would also submit an assumption of responsibility. “We cannot undo what happened nine years ago, but we can acknowledge what happened and take responsibility for it,” explained the lawyer. Wöginger himself added that he now viewed the matter “with very different eyes” than he had nine years ago, stating that he would not have acted as he did if he had known the consequences. He maintains his innocence but expressed sincere regret for what his actions had triggered.
The court then offered the defendants the possibility of diversion. Wöginger was ordered to pay a fine of 44,000 euros and a symbolic amount of 500 euros to Scharf. Siegfried M. Was assessed 17,000 euros, and Herbert B. 20,000 euros.
Despite the WKStA’s approval of this arrangement, the Vienna Public Prosecutor’s Office issued a directive to appeal the diversion. The reasoning given was that the offense indicated a “high degree of criminal energy and a significant social disturbance, and thus a heightened level of illegality.” This led to a three-judge panel of the Linz Higher Regional Court (OLG) ruling that there was no basis for diversion in Wöginger’s case. Diversion, the court stated, is only possible in “atypically minor cases” where there has been a “merely minor or otherwise insignificant damage to rights.” The threshold for this was set at 100 euros in damages. Because the difference in salary was several thousand euros, this criterion was not met. The court cited the “humiliation” of Scharf, who had a less qualified candidate chosen over her.
The Linz Regional Court must therefore decide the case anew, with only the options of a guilty or not guilty verdict remaining.
How Will Wöginger Proceed?
The ÖVP club chairman continues to assert his innocence, a position fully supported by the rest of the ÖVP, and intends to convey this to the court. However, this may not come to pass. His lawyer is expected to submit a request at the first or second hearing – which will begin with opening statements from the prosecution and defense before the defendants speak – to ask the court to refer the case to the Constitutional Court (VfGH), which could interrupt the proceedings.
The background to this is Rohregger’s constitutional concerns, stemming from the fact that the appeal against the already granted diversion was upheld without involving the accused. In other words, Wöginger was never given the opportunity to present his side of the story, yet the OLG definitively denied him diversion. Rohregger hopes that the VfGH will overturn the OLG’s decision, making diversion possible again.
Who is Presiding Over the Hearing?
The same panel of lay judges and the same judge, Melanie Halbig, who initially granted Wöginger diversion, are again responsible for the case. This is permissible because We see formally simply a continuation of the proceedings. It is expected that the same two chief prosecutors, Roland Koch and Georg Kasinger, will also appear on behalf of the WKStA.
How Long Will it Take to Reach a Verdict?
Eleven days of hearings have been scheduled – three days in February and nine in March, with April 21st tentatively set as the date for the verdict. However, because Wöginger intends to bring the case before the Constitutional Court, and his lawyer has already submitted the corresponding request to the Regional Court (though it is planned to be addressed during the hearing), the panel could decide to grant this request and refer the matter to the highest court. Two options then exist: the proceedings will be suspended until a decision is reached by the VfGH, or the proceedings will continue, but according to § 62 Abs. 3 VfGG, “only such actions may be taken or orders and decisions made that cannot be influenced by the Constitutional Court’s decision or that do not conclusively resolve the issue and do not allow for a postponement.”
What is the Potential Sentence?
If Wöginger is found guilty, the penalty ranges from six months to five years in prison. He could also lose his seat in the National Council if the sentence exceeds twelve months suspended or six months unconditional. In the event of a conviction, calls for his resignation could come not only from the opposition but also from coalition partners SPÖ and Neos. Wöginger himself has consistently ruled out withdrawing from politics. “I will remain club chairman,” he said in December – regardless of the outcome of the trial at the Linz Regional Court.
